In particular, Booktopia had stated in its online Terms of Business that consumers were only entitled to a refund, repair or replacement if they notified Booktopia within two business days of receiving a product that was faulty or not what they had ordered.

Also in March, the Full Federal Court dismissed an appeal by Mazda against a Federal Court judgement which found that it had made 49 false and misleading representations to 9 consumers about their consumer rights. This included representing that failures with their cars were not a major failure, despite serious faults and/or the need for repeated repairs, noting that multiple or repeated failures, taken together, can constitute a major failure. Mazda also refused to provide a refund to these consumers or, where refunds were offered, they were found to be well below what the consumer was lawfully entitled to.

Businesses cannot place restrictions on consumer rights. As you know, “consumer” includes B to B in certain circumstances, in particular when the product or service bought costs less than $100,000. Under the Australian Consumer Law (ACL), a consumer is entitled to a refund or replacement or may request a repair, within a reasonable time frame, if something the consumer bought has a major fault.

In an Australian Competition and Consumer Commission (ACCC) investigation, it found that more than half of the businesses reviewed made claims about environmental or sustainability practices that were ‘vague or unclear’ regarding environmental claims. If environmental claims are not accurate, then they could be false or misleading claims and again, penalties could apply.

Similarly, with Modern Slavery, after a three-year review, 30 recommendations were made in May this year, which if accepted will reduce the revenue threshold from $100 to $50 million. One of the recommendations of the report was to provide that it is an offence to knowingly make a materially false statement, although the report mentions that misleading and deceptive conduct provisions in the ACL may already apply to modern slavery. The report has also recommended the introduction of:

• An obligation to implement a due diligence system, with non-compliance being an offence– currently a reporting entity just has to describe the actions it has taken to reduce modern slavery risk
• An offence for failing to produce a modern slavery statement or for knowingly including materially false information, with penalties applying.

Finally a reminder that the changes to unfair contract terms come into force from 10 November 2023, with its introduction of penalties, being, for a company, the greater of $50M or three times the benefit derived (or 30% of annual turnover if this cannot be derived).